The Human Rights Committee, established under
article 28 of the International Covenant on Civil and Political Rights,

Meeting on 9 July 2008,

Having concluded its consideration of communication No. 1437/2005, submitted
to the Human Rights Committee on behalf of Mr. Wolfgang Jenny under the
Optional Protocol to the International Covenant on Civil and Political
Rights,

Having taken into account all written information made available to it by
the author of the communication, and the State party,
Adopts the following:

VIEWS UNDER ARTICLE 5, PARAGRAPH 4, OF THE OPTIONAL PROTOCOL

1.1 The author of the communication is Mr. Wolfgang Jenny, an Austrian
citizen born on 2 October 1940. He claims to be a victim of violations by
Austria [FN1] of articles 14, paragraph 1, alone and read in conjunction
with articles 2, paragraph 1, and 26 of the International Covenant on Civil
and Political Rights. The author is represented by counsel, Mr. Alexander H.
E. Morawa.

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[FN1] The ICCPR and the Optional Protocol entered into force for Austria
respectively on 10 December 1978 and on 10 March 1988. Austria has made a
reservation to the effect of excluding a case which has already been
examined by the ECHR.
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1.2 On 24 January 2006, the Special Rapporteur for New Communications, on
behalf of the Committee, determined that the admissibility of this case
should be considered separately from the merits.

THE FACTS AS SUBMITTED BY THE AUTHOR

2.1 On an unspecified date, the author engaged in a joint venture with three
other individuals, to construct an apartment and office building in
Salzburg. The author's share was 81.15%. In November 1997, the trustee
appointed to manage the project accounts determined that the author had
over-fulfilled his financial obligations as a partner, by approximately ˆ 7,
475, and that the partners owed a total of approximately ˆ 60,000, including
financial obligations and taxes. The partners did not make the corresponding
payments on time. On 9 September 1998, the tax authorities evaluated the
outstanding turnover tax due by the end of 1996 at ˆ 13,176, the author's
share being ˆ 10,692. On advice of his lawyer, Dr. W., the author paid the
total amount with the intention to seek reimbursement from the partners.

2.2 In January 1999, after beginning negotiations for a friendly settlement,
Dr. W. announced that the partners were willing to reimburse the author for
the payment he had made to the tax authorities. In February 1999, the tax
authorities evaluated a further corporate turnover tax at ˆ 31,291 for the
year 1997, which according to the trustee, was liable to be paid by the
partners. However, Dr. W. informed the author that further action against
the partners was precluded because on 27 January 1999, he had entered into a
global settlement agreement on behalf of the author, which erased any mutual
financial obligations between the parties in a binding way, precluding the
author from pursuing any further action against the partners, also for
future potential claims.

2.3 On 23 February 1999, the author instructed his lawyer to revoke the
global settlement agreement with the partners, as it had been concluded
without his knowledge and approval and exceeded the scope of the power of
attorney given to him. He also revoked counsel's power of attorney with
immediate effect, and engaged another lawyer.

2.4 On the advice of the latter, he instituted three distinct sets of
proceedings:

 A civil lawsuit against his partners for their outstanding financial
contributions (hereafter first set of proceedings);
 A civil lawsuit against Dr. W. for professional misconduct (hereafter
second set of proceedings); and
 A criminal complaint against Dr. W. (hereafter third set of proceedings).

2.5 In the first set of proceedings, the author filed a lawsuit in the
Salzburg Regional Court on 17 March 1999 against his partners, for their
outstanding contributions towards the building costs, arguing that his
claims remained enforceable since the global settlement agreement entered
into by Dr. W. was not attributable to him, as Dr. W. had concluded the
agreement without his knowledge and consent. He argued that it would be
contrary to common sense to assume that he would have agreed to waive claims
amounting to about ˆ 60,000 for payment of a mere 20% of his total claim,
and that the global settlement agreement, which was concluded in excess of
the power of attorney and in breach of Dr. W.'s professional duties, had no
effect under Austrian law. The partners based their defence on the global
settlement agreement concluded by Dr. W. and argued that the matter was
precluded from judicial review.

2.6 During the first hearing, the trial judge of the Salzburg Regional Court
remarked that he had doubts whether the author had sued the right parties
and asked why he had sued the partners and not Dr.W. He added that he "could
not imagine that Dr. W. should have done something like that". The author
challenged the trial judge's impartiality before the Review Senate of the
Salzburg Regional Court, which rejected the challenge on 9 August 1999.
During the challenge proceedings, the judge declared that "it cannot be
excluded that my full impartiality has been impaired by the - from the
viewpoint of the judge - unfounded challenge, although as a judge I still
consider myself capable of deciding the matter based on the results of the
evaluation of the evidence." The author did not appeal the rejection of his
challenge. As a result, the same judge continued to deal with the case.

2.7 In a hearing on 30 June 2000, Dr. W. testified that he had called the
author on 27 January 1999, the day he had concluded the agreement and that
the author had verbally agreed to it. Dr. W. produced a memo to that effect.

2.8 On 18 April 2001, the Regional Court dismissed the author's lawsuit
holding that the global settlement agreement precluded the author from
pursuing any claims against the partners, and considering that "it cannot be
presumed to be true that Dr. W., as an attorney and a witness under threat
of criminal sanctions, would commit perjury in the present trial, nor that
he would forge a memo about his telephone conversation with the author",
during which the author had allegedly verbally agreed to the settlement. In
his judgement, the trial judge reiterated his view on credibility of
testimonies. He admitted his preference for the testimony of an attorney, by
stating that "it cannot be presumed" that Dr. W. lied as a witness.

2.9 The author appealed to the Appeal Court of Linz, arguing that the trial
court had failed to assess the facts from a "common sense" point of view,
that it had failed to take into consideration all the evidence available and
that it had breached procedural rules of evaluating evidence. The trial
judge had based his judgement on a mere conviction that a lawyer such as Dr.
W. could not possibly be presumed to have testified untruthfully and that a
rule that the testimony of an attorney should generally be given more weight
than other evidence was alien to the Austrian legal order. He denounced the
alleged bias of the judge and the absence of a fair hearing, and requested
the Court to hold an evidentiary hearing and to summon, as witnesses, the
author, Dr. W., and the legal counsel who had negotiated the global
settlement agreement for the partners.

2.10 The appeal was dismissed on 9 January 2002, without the court having
heard the witnesses. The Appeal Court stated that it was not its
responsibility to evaluate the evidence in a hearing and that only an
"obviously frivolous, superficial or arbitrary" evaluation of the evidence
by a trial judge would warrant the finding of a lack of adequate reasoning.
It considered that "there were no indications that Dr. W. had acted with the
intent to cause damage" to the author and that "it cannot be excluded that
even in a well-organised law firm, mistakes may happen". With respect to the
author's renewed challenge of the trial judge, the Court considered that
this issue had already been addressed by the Review Senate of the Salzburg
Regional Court. The author filed an extraordinary petition for review to the
Supreme Court, which was declared inadmissible on 13 March 2002 for formal
reasons.

2.11 In the second set of proceedings, initiated on 23 November 1999, the
author asked the Salzburg Regional Court to hold that the lawyer was liable
for any and all future damages resulting from the fact that he had concluded
the global settlement agreement without the author's approval or consent.
This lawsuit was dismissed on 4 December 2000, and the author appealed to
the Linz Court of Appeal, which suspended the proceedings pending the
conclusion of the case against the partners (first set of proceedings). Due
to the outcome of that case, where it was held that Dr. W. was not guilty of
professional misconduct, neither the author nor Dr. W. petitioned the court
to reopen the proceedings, as they had become moot.

2.12 In the third set of proceedings, the author filed a criminal
information report against Dr. W. with the Salzburg Federal Police, for
fraud and perjury, and fraud committed during court proceedings. This
complaint was rejected in September 2002, as Dr. W.'s guilt could not be
proven. The author requested the Minister to review the decision not to
prosecute, but his request was rejected in February 2003. Finally he
submitted a private criminal complaint in the Salzburg Regional Court, which
was dismissed on 13 June 2003.

THE COMPLAINT

3.1 The author contends that his claims were wrongly dismissed by the
domestic courts, as they failed to adhere to the minimum requirements of a
fair trial stipulated in article 14, paragraph 1, of the Covenant. While
fully aware that the Committee is generally not in a position to evaluate
facts and evidence, unless it can be ascertained that the evaluation was
clearly arbitrary or amounted to a denial of justice, he claims that a
manifestly wrong decision was taken in his case. The failure of the domestic
courts to arrive at a conclusion that does not contradict common sense and
makes the decision "suspect", should prompt the Committee to apply a
heightened level of scrutiny in assessing the fulfilment of the requirements
of fairness, independence and impartiality.

3.2 The author submits that the trial judge was manifestly biased, which
rendered the hearing and decision flawed because the author was placed at a
significant disadvantage with respect to the opposing party. The trial judge
made it clear that he "[could] not imagine that Dr.W. should have done
something like that". The author refers to the Committee's decision in
Karttunen [FN2], where it found that "impartiality of the court implies that
judges must not harbour preconceptions about the matter put before them, and
that they must not act in ways that promote the interests of one of the
parties." Furthermore, the partiality of the judge was ignored on appeal, as
the Court of Appeal only assessed whether the trial judge had decided the
matter in a manner that was "inconceivable". The Court was not ready to
undergo a reassessment of the evidence and failed to look into the details
of the trial judge's evaluation of evidence.

3.3 The author claims that the principle of equality of arms was not
respected, in violation of articles 14, paragraph 1; 26 and 2, paragraph 1,
as the judge stated that it "cannot be presumed" that the lawyer lied as a
witness, which implicitly meant that the author's conflicting statements
could be presumed to be lies. Thus, the Court elevated the value of the
testimony of a member of the legal profession (Dr. W.) above the value of
the testimony of anyone else and raised the burden of proof beyond what is
the standard in civil cases in Austria. The author was disadvantaged because
he had to overcome a "presumption of credibility" of the opposing party.

3.4 The author claims that the same matter is not being examined under
another procedure of international investigation or settlement and that he
has exhausted domestic remedies.

STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY

4.1 On 19 January 2006, the State party challenged the admissibility of the
communication, on grounds of non-exhaustion of domestic remedies, with
respect to the first set of proceedings. The State party recalled that the
author initiated proceedings before the Salzburg Regional Court, and
challenged the trial judge during an oral hearing on 6 July 1999. On 9
August 1999, the Review Senate of the Salzburg Regional Court rejected the
request challenging the judge. As the author did not appeal this decision,
the proceedings continued before the same judge.

4.2 The State party indicates that the author had the possibility to appeal
the decision of the Review Senate to the Linz Court of Appeal, under section
24, paragraph 2, of the Austrian Jurisdiction Act. However, he failed to do
so and accepted the continuation of the civil proceedings. Accordingly, the
communication should be declared inadmissible.

AUTHOR'S COMMENTS

5.1 On 1 April 2006, the author commented on the State party's observations.
He claimed that the State party had failed to show that the remedy which
exists in theory under sections 23 and 24 of the Jurisdiction Act, would
have been available and efficient to him to obtain a remedy for breaches of
his Covenant rights. He argued that it is not sufficient to refer to a legal
provision to describe a procedure, and that the application of the provision
in judicial and administrative practice must be taken into consideration.

5.2 The author contended that the decision of the Review Senate of the
Salzburg Regional Court, dated 9 August 1999, did not contain instructions
as to which appeals could be filed or inform him of his right to bring an
appeal against the rejection of his challenge of the trial judge to the Linz
Court of Appeals. He refers to a decision of the Constitutional Court,
according to which a failure to give, or an incorrect appeals instruction,
cannot be held against the party concerned FN3. Therefore, the author was
deprived of equal and fair access to the remedy in question, and was not
required to exhaust it.

5.3 The author argues that Austrian law governing challenges to judges is
rigorous and requires a burden of proof for bias which is alien to the
requirements of "impartiality" of article 14, paragraph 1. He refers to a
judgement of the Supreme Court [FN4], in which it was ruled that a challenge
is the 'sharpest weapon' a party can use against a trial judge. Such a
challenge can only be successful if the reasons advanced therein are so
grave that the impartiality of the judge in question is in severe doubt.
Reasons for a challenge must be provided in detail and concretely. The
Supreme Court has also held that facts must be shown which permit the
conclusion that a judge will be guided by other than reasonable
considerations when deciding the case; mere subjective doubts or concerns of
a party that the judge may be biased are insufficient." [FN5] According to
the author, a challenge under these conditions is therefore not an effective
remedy within the meaning of the Optional Protocol.

5.4 Under international standards, when testing the objective impartiality
of a judge, petitioners are not required to prove that a judge was biased,
but only to show that there existed a legitimate doubt as to his
impartiality. Subjective bias is to be tested by assessing whether the
judges "harbour preconceptions about the matter put before them." [FN6] The
personal conviction of a judge as perceived by a party may give rise to an
"objectively justified fear" of a lack of impartiality. "In certain
circumstances, the appearance of bias may be such as to violate the right to
a fair hearing by an independent and impartial tribunal." [FN7] Austrian law
governing challenges, as applied by the Supreme Court, does not reflect
these international standards. It imposes an exclusively objective standard
for testing the impartiality of judges.

5.5 The Supreme Court has ruled that judges who consider it possible that
they were biased but nevertheless "felt" that they could rule without bias
in the given case would not be removed. This precedent would apply to the
author's case. An appeal would therefore have been futile.

5.6 The author contends that challenges of trial judges and appeals of
decisions rejecting such challenges do not have suspensive effect, with the
result that the challenged judge can continue to conduct the proceedings,
although he cannot render a final decision. His handling of the case may or
may not be set aside or repeated after a judge has been recused because of
bias. This issue would be determined by the court deciding on the challenge,
without substantive contribution from the petitioner.

5.7 The author claims that by challenging the trial judge in his appeal to
the Court of Appeal, as required by the law, he exhausted domestic remedies.
For the purposes of article 5, paragraph 2(b), authors are required to bring
the substance of their complaint before the domestic authorities so that the
State party is given an opportunity to rectify the matter [FN8]. The author
did challenge the judge first during the hearing in which the judge
expressed his bias, and again in his appeals brief to the Court of Appeal.
That the renewed challenge was made in the appeals brief rather than in an
appeal against the decision which rejected the original challenge is
justified under Austrian law. Some reasons for challenging the trial judge
became known to him only after the trial at first instance was concluded,
which allowed him to raise this matter in his appeal on the merits. The
author claimed in his appeal brief that the trial judge had decided the case
arbitrarily by not evaluating the evidence fully, by not carefully balancing
the evidence, by failing to take a certain memorandum into consideration, by
not making due use of the evidence, and by introducing a "presumption of
credibility" of a lawyer's testimony over the testimony of a private party.
The initial challenge, on the other hand, related only to the judge's
statements during the first hearing. The author refers to the jurisprudence
of the Supreme Court [FN9] and indicates that in civil cases, as opposed to
criminal cases, judges may be challenged after their decision on the merits
has been made, if the reasons for the challenge have manifested themselves
only when or after the lower court's judgement has been given. These new
reasons for a challenge could not have been raised by the author if he had
appealed against the decision not to recuse the trial judge, but only in his
appeal on the merits.

5.8 Furthermore, appeal courts can review matters only within the limits of
the facts established by the first instance judge. The Supreme Court has
ruled that "in an appeal against a rejection of a challenge of a judge, no
new reasons for the challenge can be advanced" [FN10].

5.9 Finally, the author argues that the scope of his communication extends
beyond the bias of the trial judge, to the absence of adequate review at the
appeal level and the absence of an equal opportunity to approach a court.
These aspects of the communication are not covered by the State party's
objection to admissibility.

DECISION ON ADMISSIBILITY

6.1 At its eighty-ninth session, on 5 March 2007, the Committee considered
the admissibility of the communication. It noted that the State party had
challenged the admissibility of the communication for non-exhaustion of
domestic remedies, because the author did not appeal the decision rejecting
his request to recuse the judge. The Committee observed, however, that under
Austrian jurisprudence invoked by the author, he could challenge the judge
in his appeal on the merits, if new grounds for a challenge arose from the
decision. The author did so, on the grounds that the trial judge had decided
the case arbitrarily by not evaluating the evidence fully, by not carefully
balancing the evidence, by failing to take a certain memorandum into
consideration, by not making due use of the evidence, and by introducing a
"presumption of credibility" for a lawyer's testimony over that of a private
party. The author discovered these grounds only once the judgement was
delivered and was therefore entitled to raise these claims in his appeal of
that decision. His appeal to the Supreme Court was rejected on 13 March
2002. The Committee concluded that the author, who raised the issue of the
bias of the judge at all levels up to the Supreme Court, had exhausted
domestic remedies for purposes of article 5, paragraph 2(b), of the Optional
Protocol.

6.2 Furthermore, the Committee noted that even if it was generally for the
national courts to evaluate facts and evidence, it fell within the
Committee's competence to examine whether the trial was conducted in
accordance with article 14 of the Covenant. The Committee considered that
the author had sufficiently substantiated his claims under article 14, read
together with article 26 of the Covenant for purposes of admissibility.
Accordingly, the Committee considered the communication admissible.

STATE PARTY'S OBSERVATIONS ON THE MERITS

7.1 By submissions of 9 October 2007, the State party claimed that the
communication should be considered inadmissible under article 2 of the
Optional Protocol. It also reiterated that the author failed to challenge
the decision of the Review Senate of the Salzburg Regional Court, despite
the fact that, under Austrian law, he had the right to appeal to the higher
court. The author's view that he had exhausted domestic remedies as he had
denounced the judge's bias in his appeal to the Appeal Court of Linz is
incorrect, especially since the author had based his arguments concerning
the bias of the trial judge on the latter's allegedly biased evaluation of
the evidence and grounds given for the judgement, i.e. on a manifestly wrong
allegation which was completely inadequate to dismiss the judge for
partiality. On the contrary, the grounds given for the judgement clearly
showed the impartiality of the trial judge.

7.2 Regarding the merits of the communication, the State party contends that
there is no violation of articles 14 and 26 of the Covenant. The author's
contention that the testimonies of members of the legal profession are
generally more credible and that opposing allegations of other parties
involved in a lawsuit would have to overcome a "presumption of credibility"
has no legal basis. The Austrian judge has to evaluate the testimonies of
all parties and witnesses impartially and give them - in particular based on
his personal impression at the hearing - the appropriate weight. In the
Austrian legal system there is no rule of evidence elevating the value of
the testimony of specific parties or witnesses generally above the value of
the testimony of anyone else.

7.3 The author's claim that the Regional Court had given more weight to the
testimony of Dr. W. than to his regarding the conclusion of the global
settlement agreement and particularly the decisive telephone conversation
with the author, in view of the fact that Dr. W. was a lawyer, is incorrect.
The evaluation of the evidence - which had been made with due care by the
court - led to a completely different conclusion. The Regional Court did
address the fact that there were contradictions between the testimonies of
the author and Dr. W. with respect to the global settlement agreement.
However, in evaluating the evidence the Court accepted the version of the
facts presented by Dr. W. for the following reasons:

- Dr. W. delivered his testimony as a witness, and was thus under an
obligation to present true facts and under threat of sanctions, while the
testimony of the plaintiff (the author) was not subjected to the obligation
of truthfulness under threat of (criminal) sanctions;
- The assumption that Dr. W. had given false testimony would not only have
implied that he committed perjury in the trial, but also that he committed
forgery of documents, i.e. that he had forged the memo about his telephone
conversation with the plaintiff;
- The letter of his then trustee Mag. F. of 19 May 1998 indicated that the
approval of the author to the global settlement clause was probable;
- The letter of the author to Dr. W. of 11 February 1999 also seemed to
support the version of the facts presented by Dr. W.

7.4 The evaluation of the evidence by the Court also included an examination
of the opposing testimonies of the author and Dr. W. The author's
presumption that the Court did not believe his version of the facts because
he was generally less credible as a non-lawyer is incorrect and
unequivocally contradicts the very clear explanations given by the Court in
evaluating the evidence. The considerations taken into account by the Court
in its evaluation of the evidence are, in fact, based on understandable
objective circumstances which unequivocally justify its conclusions.

7.5 No final conclusion can be drawn as to whether the trial judge might
have caused this basic misunderstanding about his evaluation of the evidence
by his remarks during the nonbinding talks about the legal foundation of the
case. It could be that the trial judge should have exercised more caution.
On the other hand, it is by no means unusual that the trial judge expresses
certain preliminary views and assessments when he discusses the case for the
first time with the parties and their counsels. Of course, this has to be
subjected to the explicit reservation of a more in-depth examination, the
course of the procedure of taking evidence and the concrete findings of the
evaluation of evidence. In the present case, this reservation was made by
the trial judge. Subsequently, the decision contained in the judgment of 18
April 2001 and the grounds given clearly showed that the judge was guided
exclusively by objective criteria.

AUTHOR'S COMMENTS ON THE STATE PARTY'S OBSERVATIONS ON THE MERITS

8.1 On 19 December 2007, the author submitted comments with regard to the
State party's observations. Regarding admissibility he stated that he had
given the State party every opportunity provided for by Austrian law
(namely, a challenge to the senate of the Regional Court and a review by the
Court of Appeal) to rectify the alleged breach of his right to a hearing by
an impartial tribunal.

8.2 The State party is incorrect in its assertion that the trial judge had
not disclosed any bias in his judgment. As described in the initial
communication, the judge, in his written judgment reiterated his earlier
comments ("I cannot imagine that Dr. W. should have done something like
that"). Thus, according to the transcript of the hearing of 6 July 1999 he
said: "it cannot be presumed to be true that Dr. W. as an attorney and a
witness under threat of criminal sanctions would commit perjury in the
present trial, nor that he would falsify a memo about his telephone
conversation [with the author]". The pursuit of the author's bias complaint
in the appeal on the merits (after his initial challenge in a separate
complaint) was thus entirely prudent, given that the same court (the Linz
Court of Appeal) was in charge of examining the bias of the trial judge and
the merits of the case. The author further reiterates his allegations
regarding the inefficiency of a challenge as a remedy against lack of
impartiality of a judge.

8.3 Regarding the merits, the State party is correct in its assertion that
there is no formal rule in Austrian law that would elevate the testimony of
members of the legal profession over that of ordinary citizens. This does
not mean, however, that there may not be a systematic practice that treats
ordinary citizens who litigate against members of the legal profession,
unfavorably. It does not mean either that there was not an explicit act of
treating the author unfavorably because of his opponent being a member of
the legal profession under the concrete circumstances of the case.

8.4 The State party's list of what the trial court actually based its
decision on contains four items of which the first two are:

- The author's opponent testified under threat of sanctions, while such
threat did not exist for the author. In fact, a party is as much under an
obligation to testify truthfully as a witness; the difference lies only in
the circumstances under which they are criminally liable. While witnesses
are generally liable, parties are so only if they testify under oath.
Austrian civil procedure law allows the judge to request that a statement is
made or repeated under oath under any circumstances. Thus, the trial judge
could very easily have "elevated" the criminal threat against the author to
severe, if he had any doubt about the author's truthfulness. That he did not
do it is an additional sign that he may already have made up his mind at
that point in time.

- The "assumption" that the opponent of the author had given false testimony
would have meant that he had committed perjury as well as forgery of
documents. Without in any way suggesting that the author's opponent has in
fact done that, the negative assumption that he has not is not based on any
objective material evidence, except for him being a member of the - more
credible - legal profession. The negative assumption also means that it is
more probable that the author had testified falsely - an assumption that is
not supported by any evidence whatsoever.

8.5 The State party concludes that there were understandable objective
circumstances which unequivocally justify the conclusion arrived at by the
Court. However, it does not explain which are those circumstances. Nothing
in the State party's explanations undoes the impression of the author,
grounded in two explicit statements by the trial judge, that his opponent,
as a lawyer, was elevated to a witness of higher credibility.

CONSIDERATION OF THE MERITS

9.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided in article 5, paragraph 1 of the Optional Protocol.

9.2 The author claims that the judge who tried his case against Dr. W. was
biased because during the proceedings he made remarks, on two occasions,
which showed his partiality in favour of Dr. W.

9.3 The Committee recalls that the requirement of impartiality has two
aspects. First, judges must not allow their judgement to be influenced by
personal bias or prejudice, nor harbour preconceptions about the particular
case before them, nor act in ways that improperly promote the interests of
one of the parties to the detriment of the other. Second, the tribunal must
also appear to a reasonable observer to be impartial. [FN11] The two aspects
refer to the subjective and objective elements of impartiality,
respectively.

9.4 As to the subjective element, the impartiality of a judge must be
presumed until there is evidence to the contrary. In this respect the
Committee notes the State Party's statement regarding the evaluation of
evidence carried out by the Regional Court, in particular the fact that the
Court accepted the version of facts presented by Dr. W. in view of
documentary evidence suggesting the approval of the author to the global
settlement. The Committee concludes that the material before it does not
disclose that the judge subjectively lacked impartiality in the present
case.

9.5 It must further be determined whether, quite apart from the judge's
personal mindset, there are ascertainable objective facts which may raise
doubt as to his impartiality. Judges must not only be impartial, they must
also be seen to be impartial. When deciding whether there is a legitimate
reason to fear that a particular judge lacks impartiality, the standpoint of
those claiming that there is a reason to doubt his impartiality is
significant but not decisive. What is decisive is whether the fear can be
objectively justified.

9.6 In the present case, the remarks made by the judge may well have raised
certain doubts as to his impartiality on the part of the author. However,
the Committee finds that the remarks were not such as to objectively
justify, in the absence of other elements, the author's fear as to the
judge's impartiality. Accordingly, the Committee finds that in the present
case the facts do not disclose a violation of Article 14, paragraph 1 of the
Covenant.

10. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol, is of the view that the facts before it do not disclose a
violation of the International Covenant on Civil and Political Rights.

[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]